Communicated on 11 May 2017
FOURTH SECTION
Applications nos 62198/16 and 22208/17
Oleksandr Mykolayovych SHVETS against Ukraine
and Mykola Petrovych SHVETS against Ukraine
lodged on 19 October 2016 and 14 March 2017 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Oleksandr Mykolayovych Shvets, is a Ukrainian national who was born in 1976 and lives in Kyiv.
The applicant in the second case, Mr Mykola Petrovych Shvets, is a Ukrainian national who was born in 1946 and lives in Cherkasy.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The first case (application no. 62198/16)
On 10 August 2010 the applicant married D. On 25 November 2011 their daughter was born. The family lived in a flat in Kyiv.
Relations between the applicant and D. deteriorated and on 20 December 2014 D. took the child and moved out of the flat without the applicant’s agreement or knowledge. The applicant was not informed of the place to which D. and the child had moved to live. Subsequently, the applicant found out that D. and the child had moved to D.’s parents in the city of Kherson.
On 17 April 2015 D. lodged a claim with the Svyatoshynshynskyy District Court of Kyiv against the applicant, seeking an order that the child should live with her and that the applicant should pay her a monthly amount for the support of their daughter.
On 18 June 2015 the applicant lodged a counterclaim, asking the court to order D. to immediately hand over the child to the applicant in Kyiv, where the child had lived before her removal, and to order that the child should live with him.
On 4 November 2015 the court decided that the child should live for alternate periods with the applicant and D., changing the parent each month, until the age of ten. The court found that both parents were able to take care of the child and assure her of all the conditions for her development. In its decision it was noted that the court was critical of the fact that D. had unilaterally changed the place of the child’s residence by moving from Kyiv to Kherson.
Both parents appealed.
On 13 January 2016 the Kyiv Court of Appeal reversed the decision of the first-instance court and adopted a new decision. It determined that the child should live with D. and ordered the applicant to pay her a monthly amount for the support of their daughter. The Court of Appeal found that D. had an employment and that she took care of the child and there were no exceptional circumstances requiring the separation of the child from her mother.
The applicant appealed on points of law, arguing that the courts had failed to examine all the circumstances of the case and that the decisions were unlawful and discriminating.
On 28 March 2016 the Higher Specialised Court for Civil and Criminal Matters upheld the decision of the Court of Appeal, noting that there had been no exceptional circumstances justifying the separation of the child from the mother.
On 20 April, 21 June and 14 July 2016 the applicant asked the Supreme Court to review the case on the grounds that there had been divergent application of law and that the decision of 28 March 2016 did not comply with the legal position of the Supreme Court on similar cases.
On 21 April, 23 June and 2 September 2016 the Supreme Court rejected the requests as unfounded.
2. The second case (application no. 22208/17)
The applicant is the father of the applicant in the first case.
On 7, 29 and 30 April and 1, 21 and 22 May 2015 the applicant was in Kherson trying to see his granddaughter but was prevented from meeting the child by D. or her relatives.
On 23 June 2015 the applicant lodged a claim with the Svyatoshynskyy District Court of Kyiv seeking that D. be ordered not to prevent him from having access to his granddaughter. The applicant also requested that the court arrange a schedule of regular meetings with his granddaughter in Kyiv, to where she should be returned immediately.
On 18 April 2016 the court partly allowed the claim and ruled that the applicant should have meetings with his granddaughter from 10 a.m. until 5 p.m. on the first and third Saturday of the month. The court specified that the meetings should take place in the presence of the child’s mother.
The applicant appealed, arguing ‒ among other things ‒ that the court had failed to resolve the principal issue of ordering the mother not to prevent him from having access to the child and that it had not determined the place of the meetings.
On 8 June 2016 the Kyiv Court of Appeal amended the first-instance court decision by stating that the meetings should not take place in the presence of the child’s mother.
The applicant appealed on the points of law, repeating the arguments he had raised before the Court of Appeal.
On 14 September 2016 the Higher Specialised Court for Civil and Criminal Matters dismissed the applicant’s appeal.
B. Relevant domestic law
Family Code of 10 January 2002
1. The Code provides that the place of residence of a child under ten years of age shall be determined jointly by the parents (Article 160 § 1). If parents who live separately cannot agree on the place of residence of a child under the age of fourteen years, the dispute may be determined by a guardianship authority or by a court. When deciding such a dispute, the guardianship authority or the court should take into account the parents’ respective attitudes to their parental duties, the personal disposition of the child toward each parent, the age of the child, the child’s state of health, and other relevant circumstances (Article 161 § 1). Neither the guardianship authority nor the court can order that a child’s place of residence be with a parent who does not have an independent income, or who abuses alcohol or drugs, or who by dishonourable conduct may cause damage to the development of the child (Article 161 § 2).
2. The Code also provides that if the place of residence of a child under fourteen years of age is changed by a parent or by any other individual without the authorisation or consent of the other parent or of an individual with whom the child resides by virtue of law or a court decision, a court may order the immediate return of the child to the person with whom the child was living previously, unless such return would put the child’s life and health in real danger (Article 162 § 1).
C. Domestic judicial practice
3. In a resolution of 14 December 2016 (case no. 6-2445цс16) the Supreme Court reviewed the decisions of the lower courts on the grounds that there had been a divergent application of Article 161 of the Family Code and Principle 6 of the United Nations Declaration of the Rights of the Child. Having examined the case, the Supreme Court upheld the decision of the first-instance court, determining that the child in question should live with her mother. The Supreme Court concluded that the courts had not established any exceptional circumstances for the purposes of Article 161 of the Family Code and Principle 6 of the UN Declaration of the Rights of the Child suggesting that the child should not live with her mother.
D. International material
1. The United Nations Declaration of the Rights of the Child of 20 November 1959
The relevant extracts of the Declaration read as follows:
Principle 2
“The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. ...”
Principle 6
“The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable. ...”
2. The United Nations Convention on the Rights of the Child of 20 November 1989
The relevant extracts of the Convention, which came into force with respect to Ukraine on 27 September 1991, read as follows:
Article 3
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ...”
Article 9
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. ...”
COMPLAINTS
1. The first case (application no. 62198/16)
1. The applicant complains under Articles 6 § 1, 8 and 14 of the Convention that the court decisions concerning determination of the child’s place of residence were not properly reasoned, that the courts failed to analyse the applicant’s role in the child’s life, and that they examined the circumstances of the case in only a limited way as regards the mother’s ability to bring up the child; the courts breached the principles of legal certainty, equality of arms and impartiality.
2. The applicant complains under Article 8 of the Convention that he was deprived of access to his child and that there were no effective safeguards to ensure his parental rights from the moment his child was removed.
2. The second case (application no. 22208/17)
The applicant complains under Articles 6 and 8 of the Convention that the courts failed to ensure his access to his granddaughter. He argued, in particular, that the court decisions did not address the question of the child’s mother’s preventing the applicant’s meetings with the child and the court decisions did not stipulate any place for the meetings that had been granted.
QUESTIONS TO THE PARTIES
The first case (application no. 62198/16)
1. Has the applicant complied with the six-month rule?
2. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular:
(a) Did the applicant have effective substantive and procedural safeguards in domestic law ensuring respect for his custody and access rights during the period of allegedly unlawful retention of his child? Could the action under Article 162 of the Family Code be considered an appropriate procedure for that purpose?
(b) Did the domestic courts determine the child’s place of residence in accordance with requirements of Article 8? Did the courts identify the best interests of the child and carry out appropriate assessment of all the relevant circumstances?
The second case (application no. 22208/17)
2. Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention? In particular, did the domestic courts deal with the applicant’s claims in accordance with requirements of Article 8? Did they decide on the applicant’s allegation that his meetings with his granddaughter were prevented? Was the final court decision in the applicant’s case enforceable by bailiffs?
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